Terms of Service

Terms of Service

Terms of Service

MaxBrain AG

General Terms and Conditions of MaxBrain AG

1. General, principles of cooperation

MaxBrain AG (hereinafter referred to as MaxBrain) operates a web application/service and associated SmartPhone Apps (GooglePlay, AppStore) on the Internet under "yourdomain.maxbrain.com" and under customer domains, by means of which companies manage their training and further training. The following General Terms and Conditions regulate the legal relationship between MaxBrain and its customers (hereinafter "customer") with regard to the provision of software for use via the Internet (Software as a Service, SaaS for short).

The provisions of these terms and conditions apply to all contractual relationships between MaxBrain and the customer and form an integral part of every contract between MaxBrain and the customer. Deviating or supplementary terms and conditions of the customer are only valid if they are accepted by MaxBrain in writing. The parties work together in confidence and inform each other immediately in case of deviations from the agreed procedure or doubts about the correctness of the procedure of the other. If the customer realises that her own details and requirements are incorrect, incomplete, unclear or not feasible, she must inform MaxBrain immediately of this and of the consequences that she recognises.

The contracting parties designate contact persons and their respective deputies to each other. These manage and monitor the processing of the contractual relationship for the contracting party naming them responsibly and expertly. The parties inform each other immediately of any changes with regard to the persons named. Until receipt of such notification, the previously named contact persons and/or their deputies shall be deemed entitled to make and receive declarations within the scope of their previous power of representation. The contact persons shall agree at regular intervals on progress and obstacles in the execution of the contract, in order to be able to intervene in the execution of the contract if necessary.

2. Dates

The dates are fixed by mutual agreement.

MaxBrain is not responsible for delays in performance due to force majeure (e.g. strike, official orders, general disturbances of the telecommunication etc.) and circumstances in the area of responsibility of the customer (e.g. not punctual provision of cooperation services) and entitles her to postpone the provision of the services concerned for the duration of the hindrance plus an appropriate start-up time. MaxBrain will inform the customer of delays in performance due to force majeure.

3. The customer's obligation to cooperate, direct/indirect obstruction of MaxBrain in the fulfilment of the contract

The customer supports MaxBrain in the fulfilment of its contractually owed services. This includes in particular the timely availability of information and data material, insofar as the cooperation services of the customer require this. The customer will instruct MaxBrain in detail about the services to be provided by MaxBrain. Insofar as the customer has undertaken to procure materials of any kind for MaxBrain within the framework of the execution of the contract, the customer must make these materials available to MaxBrain immediately and in a common, directly usable, preferably digital format. If it is necessary to convert the material provided by the customer into another format, the customer bears the costs arising in this connection. The customer also ensures that MaxBrain obtains the rights necessary for the use of such materials. The customer carries out acts of cooperation at her own expense.

If the customer does not make foreseeable decisions necessary for the fulfilment of the contract or makes them later than the dates agreed by both parties or fixed in writing, MaxBrain reserves the right to charge the customer for the costs of the resources released for the fulfilment of the contract during the time of the hindrance.

If the customer does not supply documents, materials etc., which are relevant for the fulfilment of the contract, or does not supply them in accordance with the dates previously agreed by both parties or fixed in writing, MaxBrain reserves the right to charge the customer for the costs of the resources released for the fulfilment of the contract in the time of the hindrance.

4. Changes in services

MaxBrain is entitled to change the services to be provided according to the contract or to deviate from them if the change or settlement is reasonable for the customer taking into account the interests of MaxBrain.

If the customer wants to change the contractually agreed scope of the services to be provided by MaxBrain, she will be given this change request in writing.

5. Copyrights and scope of use

The copyrights of the SaaS developed by MaxBrain belong in principle to MaxBrain. MaxBrain can dispose of these rights in accordance with the provisions of the Federal Law on Copyright and Related Rights.

MaxBrain is entitled to designate its authorship of the SaaS it has created in a form to be determined by it.

The scope of the permitted use of the SaaS developed by MaxBrain results from the purpose of the contract concluded with the customer. In particular, SaaS developed by MaxBrain, contract documents or parts thereof, which are handed over to the customer, may only be used within the framework of the agreed contract. Unless otherwise agreed, the content, time and geographical use by the customer refers to the use of SaaS for a limited period of time. Any further use outside the purpose of the contract is not permitted without the permission of MaxBrain. In particular, the customer is prohibited from granting sub-licences and from copying, leasing or otherwise exploiting the services.

Until full payment has been made, the customer is only permitted to use the services provided on a revocable basis. MaxBrain can revoke the use of such services, with whose remuneration payment the customer is in delay, for the duration of the delay.

The customer must compensate MaxBrain additionally for any further use outside the contract purpose.

Until full payment has been made, the customer is only permitted to use the services provided on a revocable basis. MaxBrain can revoke the use of such services, with whose remuneration payment the customer is in delay, for the duration of the delay.

The customer must compensate MaxBrain additionally for any further use outside the contract purpose.

6. Guarantees of MaxBrain

There are no third-party property rights to the SaaS.

Subject in particular to the provisions of articles 2 and 3, MaxBrain guarantees the functions defined at the time of the analysis or new or modified functions, insofar as these have subsequently been agreed in writing by both parties.

This guarantee does not apply insofar as a functional error is due to circumstances beyond its control, such as (but not limited to)

Changes in the conditions of use and operation. Intervention in programs by the customer or third parties. Operating errors by the customer or third parties. Any further warranty is expressly excluded.

7. Product acceptance and removal of defects

Subsequently identified defects in the SaaS provided by MaxBrain with jointly defined customer-specific adjustments will be remedied by MaxBrain free of charge up to six months after acceptance. Only deviations from functions defined at the time of the order or from new or modified functions are deemed to be defects, insofar as these have subsequently been agreed in writing by both parties. All other work (e.g. changes, extensions or adjustments of the functions, hardware-related work etc.) will be invoiced additionally by MaxBrain to the customer.

8. Contractual training, costs and payment modalities

Subject to a separate regulation, a contract is concluded when MaxBrain confirms an order of the customer in writing or in electronic form (e.g. by e-mail). A contract is also concluded if the service is provided by MaxBrain (use of the software) or is claimed by the customer. MaxBrain reserves the right to confirm the conclusion of a contract by means of an invoice.

MaxBrain is bound by written offers for a period of 20 days, unless another period is mentioned on the offer. Information given by telephone is only binding if it has been confirmed in writing (possibly also by e-mail). Unless otherwise agreed in individual cases, the price fixed in advance in accordance with the offer confirmation by MaxBrain applies to the provision of SaaS. Price changes which are not within the sphere of influence of MaxBrain are reserved. These can be charged to the customer at any time.

MaxBrain charges the customer for approved additional expenses without a price fixed in writing according to the respective expenditure. (hourly rate)

All prices agreed in writing or verbally are exclusive of value added tax.

Unless otherwise agreed, the following conditions apply with regard to payment terms:

Payment of the annual SaaS usage fee for support, maintenance and hosting is made in advance:

30% of the annually recurring usage fees 30 days after order confirmation. 70% of the annually recurring usage fees 30 days after activation of the access/apps.

9. Liability

MaxBrain makes every effort to provide its services at all times to the full extent and in the best quality. Any faults will be rectified as soon as possible within the framework of the existing possibilities. If the fault is no longer rectified or is not rectified within a reasonable period of time for reasons that lie exclusively with MaxBrain, the customer can withdraw from the contract as the only measure. The customer expressly agrees that MaxBrain, as far as legally permissible, rejects any liability for any kind of damage that could arise for the customer through the use of SaaS. In any case the liability of MaxBrain is limited to the direct damage.

Wegbedungen is hereby in particular any liability from simple negligence, for indirect damages and consequential damages including lost profit.

MaxBrain is not liable for the loss of data and/or programs insofar as the damage is based on the fact that the customer has omitted to carry out data backups and thereby ensure that lost data can be restored with reasonable effort.

If MaxBrain is prevented from carrying out the work assigned to it for reasons beyond its control, no possible compensation can be derived from this.

The above regulations also apply in favour of MaxBrain's vicarious agents and auxiliary persons.

10. Secrecy

Both parties undertake to maintain confidentiality towards third parties. This obligation of secrecy includes all information that constitutes trade secrets, which the parties have received or obtained from the project.

The documents, knowledge and experience handed over to the other party may only be used for the purpose of cooperation between the two parties. They may not be made accessible to third parties unless they are intended to be made accessible to third parties or are already known to third parties. Third parties are not the auxiliary persons or vicarious agents (such as freelancers, subcontractors, etc.) consulted for the execution of the contractual relationship.

Furthermore, the contracting parties agree to maintain confidentiality with regard to the contents of this agreement and the knowledge gained during its execution.

The confidentiality obligation shall also apply beyond the termination of the contractual relationship. If requested by one of the contracting parties, the documents handed over by it, such as strategy papers, briefing documents, etc., shall be returned to it after termination of the contractual relationship, unless the other contracting party can claim a legitimate interest in these documents.

11. Data protection
Certain customer data will be processed in accordance with the Swiss data protection law. The customer agrees that MaxBrain may transfer the customer's data to partners abroad and that it may be stored there temporarily or permanently.

12. Involvement of third parties

MaxBrain can call in third parties at any time at its own discretion to fulfil its contractual obligations. It is liable for the careful selection and instruction of these third parties.

13. Additional provisions for general internet applications

Availability of domain names. MaxBrain is not obliged to check the availability of a domain or compliance with the registration conditions of the respective registry.

If the customer instructs MaxBrain to apply for a domain name on behalf of the customer, the customer waives all claims against MaxBrain which are connected with this order.

Registration conditions of individual domain name registries. Insofar as domains are the subject of the corresponding contractual relationship, the registration conditions of the relevant domain name registries automatically become an integral part of these conditions.

The customer replaces MaxBrain all damages which can arise from the fact that the registration conditions of the respective responsible domain name registration authorities are not kept.

14. Additional provisions for Software as a Service (SaaS)

a) Principle

MaxBrain provides the customer with storage space on server connected to the Internet. The server receives and sends data in connection with the Internet. The customer uses the storage space rented to her by MaxBrain to operate a learning management system. The following terms only apply to the learning management system of the customer explicitly mentioned in the respective order; other persons or organisations are not included. 

b) Services

According to the product description, MaxBrain provides the customer with SaaS (browsers, mobile apps, logins, etc.) for a usage fee. The usage fee must be paid in advance in each case; otherwise MaxBrain reserves the right to discontinue the service. By carrying out maintenance work on the software or on the servers on which the software runs, MaxBrain optimises the operation, performance and quality of the software. The customer therefore tolerates short-term restrictions on use which arise from maintenance work. MaxBrain carries out maintenance work preferably at off-peak times (between 17.30 and 8.30 hours). Longer interruptions due to maintenance work are communicated to the customer at an early stage and planned together.

MaxBrain can provide an update or further development of the software or individual components as a new version or update. The customer is obliged to use the new version or update. MaxBrain can offer new functionalities as extensions for a fee. There is no obligation for the customer to obtain these. We reserve the right to integrate updates without incurring additional costs.

MaxBrain hosts customers on servers from Microsoft Azure Data Centers located in Switzerland. Customers may choose from another Swiss Data Center available, iGeeks AG, at an additional hosting cost. 

c) Content

The customer undertakes to keep her access data confidential. The customer can change her access password at any time. The customer is responsible to MaxBrain for every use of the storage space and is liable for every damage arising from the misuse of the storage space. The customer is obliged to comply with Swiss and international law and generally recognised rules of conduct (netiquette etc.) when using the storage space. The customer is responsible for the content of the information which the customer or third parties transmit or have processed, retrieve or make available for retrieval via the MaxBrain servers. In particular, the following information or data may not be distributed via the customer's storage space:

Information or data that violates copyrights and related rights, design rights, trademark rights, patent rights or other intellectual property rights and similar rights of third parties;
Pornographic writings, sound or image recordings and representations within the meaning of Art. 197 StGB;
racial discrimination within the meaning of Art. 261bis StGB;
depictions of violence within the meaning of Art. 135 of the Swiss Criminal Code (StGB);
incitement to violence within the meaning of Art. 259 of the Swiss Penal Code;
instructions or incitement to criminal behaviour;
Unauthorised gambling within the meaning of the Lotteries Act.
MaxBrain rejects any liability for the content of customers and third parties.

d) Abusive use

In cases of improper use, MaxBrain reserves the right to block the customer's software licences with immediate effect at the customer's expense. Abusive use is deemed to be in particular the non-fulfilment of the contractual obligations of the customer mentioned in Art. 17(c). The blocking shall remain in effect until the respective facts have been clarified or the customer provides evidence that the content is actually harmless. MaxBrain also reserves the right to block the service at the expense of the customer if her user behaviour in any way impairs the operating behaviour of the servers. Furthermore, the customer is prohibited from reselling, subletting or lending components of a hosting package to third parties.

e) E-mail

The customer must regularly check the accesses in her personal electronic mailbox (e-mail) and avoid exceeding the storage space. The sending of unsolicited mass e-mails (spamming) via the MaxBrain servers and the operation of mailing lists to an extent that endangers the operational stability of the MaxBrain servers is not permitted and constitutes an improper use of the services provided.

(f) Data protection

The customer is solely responsible for making backup copies of data that she transmits to MaxBrain. All data entered on MaxBrain is stored daily as a back-up in accordance with the selected service level agreement for 1 to a maximum of 3 months. In the event of data loss, the customer is obliged to transfer the relevant data to MaxBrain again free of charge. There are various data protection risks for the customer when using the Internet. For example, data protection is not guaranteed when data is transmitted without encryption. It must therefore be expected that unencrypted e-mails can be read, changed or suppressed by third parties without authorisation. The encryption and coding of transmitted information can improve protection against unauthorised access.g

g) Liability

The client uses the SaaS at her own risk. MaxBrain declines all responsibility for the completeness, accuracy and quality of the data and information transmitted within the framework of SaaS. Notwithstanding the provisions of Article 9, MaxBrain accepts no responsibility for damage caused by the customer to third parties through misuse of the MaxBrain storage space. This includes damage caused by computer viruses. MaxBrain does not guarantee that the SaaS can be used without problems from all end devices. MaxBrain declines all liability for the loss or unauthorised modification of e-mails. MaxBrain is not liable for operational interruptions which serve the fault repair, the maintenance, the conversion of the infrastructure (switchovers etc.) or the introduction of new or other technologies.

h) Support

All requests for technical support can be sent by email to info@maxbrain.com. Insofar as the necessary support exceeds the usual extent, MaxBrain reserves the right to charge the customer for the expenditure according to the currently valid rates.

i) User fees

If the total annual storage volume is exceeded, additional fees may apply. MaxBrain informs the customer in advance and gives her the opportunity to reduce the amount of storage used up to a jointly defined date.

15. Term of contract, termination

The respective contract comes into force upon signature and is concluded for an indefinite period of time or for the selected contract period. The contract can be terminated by either party subject to a 30-day period of notice.

On termination, MaxBrain will issue the customer with an invoice for the work carried out up to the time of termination. The customer undertakes to pay the invoice amount within 30 days of receipt; fees already charged or invoiced will not be credited or refunded.

Insofar as the customer data are personal data, the following applies: MaxBrain processes the customer data exclusively on behalf of and according to the instructions of the customer and exclusively for the purpose of providing the service. MaxBrain takes appropriate technical and organisational measures to protect the customer data. The customer remains responsible for the legality of the collection, processing and use of the customer data according to the applicable legal regulations, in particular the Swiss Data Protection Act (DSG).

16. Changes

MaxBrain reserves the right to amend these terms and conditions at any time and without prior notice. The currently valid version can be viewed and printed at the following URL: http://www.maxbrain.com/AGB.

17. Partial invalidity

If a competent authority, a court etc. in a decision should consider one or more provisions in these terms and conditions to be null and void or invalid, the binding force of the remaining provisions shall not be affected. In this case MaxBrain replaces the respective void or ineffective regulation by an economically equivalent, legal regulation.

18. Legal venue

All disputes arising from or in connection with these provisions shall be subject to the jurisdiction of the ordinary courts. Exclusive place of jurisdiction is Zurich. MaxBrain reserves the right to sue the customer at her place of residence.

19. Applicable law and place of jurisdiction

These provisions are subject exclusively to Swiss substantive law. The application of the UN Convention on the International Sale of Goods (Vienna Sales Convention) is excluded. The parties agree as exclusive legal venue the ordinary court at the seat of MaxBrain. MaxBrain also has the possibility to sue the customer at her seat or residence.

 

 

Zürich, September 2020